Major Reform or a Tinker and a Promise?
The Government has now published its Good Work Plan, which it describes as the biggest reform of employment law in 20 years, in response to the 2017 Taylor Review into Modern Working Practices. However, the concrete changes that have been put forward struggle to justify that headline.
The most significant proposal is the abolition of the so-called Swedish Derogation which currently excludes agency workers who have a contract of employment with the agency from receiving the same pay as directly recruited workers. This has been warmly welcomed by the TUC. There are other proposals which include tinkering with the rules on continuity of employment and the timing, the scope and timing of the duty to provide a statement of written particulars and protecting staff tips.
However, those hoping for a rigorous change to the regulation of zero-hours contracts may be left underwhelmed. The proposal here is to introduce a right to request a fixed working pattern after 26 weeks of working a non-fixed pattern. This provides employers with very broad grounds to refuse such a request and imposes only modest penalties for non-compliance. This is unlikely to satisfy those who would criticise the lack of security from this type of employment and its failure to provide a reliable source of income.
As for the gig-economy, an intention is announced to clarify the definitions of employee, worker and self-employment through legislation. But there are no specific proposals or timeframes put forward. The reality is that while there is general agreement that clarity is needed no-one really knows how to achieve it. Perhaps the Government is waiting to see how the Supreme Court develops its thinking after its decision on Pimlico Plumbers when further cases such as Uber, Addison Lee, City Sprint, Hermes make their way to its doors. While there is pragmatism in a wait and see approach this is hardly a change to the plate tectonics of the employment relationship.
